United States District Court, D. Connecticut
RULING ON PLAINTIFFS’ MOTION FOR CLASS
R. Underhill United States District Judge
lawsuit was brought by Thomas T. McDougle
(“McDougle”) and Rosemarie Taylor
(“Taylor”) against their employer Dakota of Rocky
Hill, LLC (“Dakota”), a steakhouse and tavern in
Connecticut. McDougle has worked as a restaurant server at
Dakota since August 2015 and Taylor has been a server since
October 2015. McDougle and Taylor (“the
Plaintiffs”) claim that Dakota violated Connecticut and
federal law by failing to satisfy the Fair Labor Standards
Act’s (“FLSA”) “Tip Credit”
notice requirement. Specifically, the Plaintiffs allege that
Dakota violated Section 203(m) of the FLSA by taking a tip
credit against its servers’ wages from February 2014 to
the present without providing sufficient notice. On October
19, 2018, the Plaintiffs filed a motion for class
certification pursuant to 29 U.S.C. § 216(b).
See Doc. No. 79. I held oral argument on June 11,
2019 and took the motion under advisement. See Doc.
No. 103. For the reasons that follow, the motion is
Standard of Review
the FLSA, a collective action for unpaid wages may be
maintained by any one or more employees for and on
“behalf of himself or themselves and other employees
similarly situated.” 29 U.S.C. §
216(b). Conditional certification is appropriate
if a plaintiff makes a “factual showing that they and
potential opt-in plaintiffs together were victims of a common
policy or plan that violated the law.” Myers v.
Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (internal
citations and quotations omitted).
courts in this circuit have undertaken a two-stage
inquiry” in deciding whether notice should be issued.
Perkins v. New Eng. Tel. Co., 669 F.Supp.2d 212, 217
(D. Conn. 2009). First, the court must “determine
whether the proposed class members are similarly
situated.” Id. For the first step in the
inquiry, before discovery is conducted, “a class
representative has only a minimal burden to show that he is
similarly situated to the potential class, which requires a
modest factual showing sufficient to demonstrate that they
and the potential class members together were victims of a
common policy or plan that violated the law.”
Marcus v. Am. Contract Bridge League, 254 F.R.D. 44,
47 (D. Conn. 2008) (internal quotations omitted). If the
first inquiry is satisfied, then the action may be
conditionally certified as a collective action, and,
accordingly, notice may be issued to the prospective class
the second step, which follows the discovery phase, a court
“examine[s] all the evidence then in the record to
determine whether there is a sufficient basis to conclude
that the proposed class members are similarly
situated.” Id. “At step two, with the
benefit of additional factual development, the district court
determines whether the collective action may go forward by
determining whether the opt-in plaintiffs are in fact
similarly situated to the named plaintiffs.” Glatt
v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d
district courts possess discretionary power to authorize the
sending of notice to potential class members. Hendricks
v. J.P. Morgan Chase Bank, N.A., 263 F.R.D. 78, 82 (D.
Conn. 2009). Notice is intended to be issued early in the
course of a collective action to “ascertain  the
contours of the action at the outset” and further the
broad remedial purpose of the FLSA. Hoffman-LaRoche v.
Sperling, 493 U.S. 165, 171 (1989). When evaluating
whether to authorize notice in FLSA collective actions,
district courts have authority to scrutinize the merits of
the Plaintiffs’ claims. See, e.g., Amendola v.
Bristol-Myers Squibb Co., 558 F.Supp.2d 459, 467 n.9
the FLSA, “an employer of a ‘tipped
employee’-i.e., an employee engaged in an occupation in
which he or she customarily and regularly receives more than
$30 a month in tips, . . . may utilize a unique payment
structure to compensate employees.” Benavidez v.
Greenwich Hotel Ltd. P’ship, 2019 WL 1230357, at
*9 (D. Conn. Mar. 15, 2019) (internal citation and footnote
omitted). “Employers may pay a tipped employee using a
combination of: (1) a base hourly wage . . . which may be as
low as $2.13; and (2) an additional amount on account of the
tips received by the employee (commonly known as a ‘tip
credit’) that is equal to the difference between the
base hourly wage and the statutory minimum wage.”
Id. (internal footnotes omitted).
to Section 203(m) of the FLSA, an employer must inform its
tipped employees of the tip credit provisions of the FLSA in
order to retain the “tip credit” against their
wages. See 29 U.S.C. § 203(m). Under that
requirement an employer must: (1) inform its employees of
their server cash wage amount; (2) inform its employees that
they will make tips that will amount to a combined wage that
is equal or more than the federal minimum wage (which is
currently $7.25 per hour); and (3) allow the employees to
retain all tips except for tips that are used in tip pools
among employees who customarily and regularly receive tips.
See 29 U.S.C. § 203(m)(2)(a). The burden is on
the employer to comply with Section 203. See Fuk Lin Pau
v. Jian Le Chen, 2015 WL 6386508, at *2 (D. Conn. Oct.
21, 2015). “If [an] employer cannot show that it has
informed employees that tips are being credited against their
wages, then no tip credit can be taken . . . .”
Reich v. Chez Robert, Inc., 28 F.3d 401, 403 (3d
April 2011, the Department of Labor (“DOL”)
revised its regulations regarding the FLSA. See
Updating Regulations Issued Under the Fair Labor Standards
Act, 76 FR 18832-01. Those revisions include further
explanation of Section 203(m)’s tip notice requirement,
now codified as 29 C.F.R. § 531.59(b), which provides
that a restaurant employer may not:
[T]ake the tip credit unless it has informed its tipped
employees in advance of the employer’s use of the tip
credit of the provisions of section 3(m) of the Act,
i.e.:  The amount of the cash wage that is to be paid
to the tipped employee by the employer;  the additional
amount by which the wages of the tipped employee are
increased on account of the tip credit claimed by the
employer,  which amount may not exceed the value of the
tips actually received by the employee;  that all tips
received by the tipped employee must be retained by the
employee except for a valid tip pooling arrangement limited
to employees who customarily and regularly receive tips; 
and that the tip credit shall not apply to any employee who
has not been informed of these requirements in this section .
. . .
29 C.F.R. § 531.59(b) (emphasis added).
the Plaintiffs allege that Dakota failed to notify its
restaurant servers of the five specific provisions of the
DOL’s revised regulations. See Pls’ Mem.
in Supp. Mot. for Class Cert. (Doc. No. 79-1) at 2. They
argue that Dakota’s server orientation, its employee
handbook, and its wage posters all fail to satisfy the
requirements of the FLSA. The Plaintiffs claim that all
Dakota’s servers undergo the same orientation program
when they are hired. Id. at 12. During orientation,
restaurant servers were orally told details about their
compensation but allegedly were never notified of the
specific tip credit provisions of Section 203(m) and the
amended DOL regulation. To support that assertion, the
Plaintiffs rely on Dakota’s new employee handbook (doc.
no. 79-3) and Dakota’s “Tip Reporting Policy
Form” (doc. no. 68-1 at 9–10), which, according
to the Plaintiffs, both fail to expressly inform Dakota
servers of the tip credit notice requirement.
Plaintiffs also allege that Dakota failed to display any
state or federal wage posters in its restaurant until after
the lawsuit commenced. See Pls’ Mem. in Supp.
Mot. for Class Cert. at 16. After the action was filed, the
Plaintiffs contend that Dakota installed a federal wage
poster that states, “[e]mployers of ‘tipped
employees’ must pay a cash wage of at least $2.13 per
hour if they claim a tip credit against their minimum wage
obligation. If an employee’s tips combined with an
employer’s cash wage of at least $2.13 per hour do not
equal the minimum hourly wage, the employer must make up the
difference. Certain other conditions must also be met.”
Doc. No. 52-3 at ¶ 21. In addition, beginning in
February 2017, Dakota began providing each server with a
document entitled “Notice of FLSA Tip
Credit.” See Doc. No. 68-1 at 12.
current suit was initially filed by McDougle and Taylor on
February 15, 2017. See Doc. No. 1. Dakota answered
on March 20, 2017. See Doc. No. 14. The Plaintiffs
filed an amended complaint on March 20, 2017. See
Doc. No. 16. Since March 2017, nine other servers have joined
the action. Plaintiffs previously moved for class
certification on February 7, 2018 (doc. no. 52) and I denied
their motion without prejudice to renewal following discovery
on July 18, 2018. See Doc. No. 77. The Plaintiffs
filed their second motion for class certification on October
19, 2018. See Doc. No. 79.